VOLUME XXXI

NUMBER ONE

VS.

1. The occurrence of an accident or delay by the act of God, or of a casualty or unavoidable accident, while a train is in course of transit from one terminal point to another, does not suspend the entire hours of service act as to that train; the statute does not mean that as to a train so delayed the operative period of service is extended from sixteen to twentyone or twenty-six hours, according as some delay from the exempting causes may occur whilst the train is in transit.

2. The hours of service may be extended in such cases beyond the period fixed in the statute, only so far as may be necessary to permit the train to be operated to a point at which, due regard being had to all the circumstances of the particular case and the character of the train, the train crew I could be relieved or be allowed to take the rest required by the statute. 3. When a freight train was reported at a way station to have already exceeded the statutory limit of service and there was no extraordinary exigency that required this freight train to go on to its final terminal, if the jury finds that such train reasonably could have been tied up at such way station so as to give the employees the rest required by the statute, the railroad officials were not

justified in permitting them to continue to exceed the statutory limit of labor. If there has been a delay produced by justifiable causes at the time the train reached a way station, still if there was a point either at that station or some other where the train reasonably could have been tied up, or a new crew put on, the train could only be operated after the limit of sixteen hours until a suitable stopping place could be reached; and it is the railroad's duty to have suitable stopping places where rest can be had for its employees, at proper places along its road, proportionate to the exigencies of the business.

4. Same rule laid down where train en route is reported at a way station when the period of service for the train crew is within a few minutes of the expiration of the sixteen-hour period of service and there is no reasonable expectation of being able to make the final terminal within the sixteen hours.

Ernest F. Cochran, United States attorney, and Walter N. Brown, special assistant United States attorney, for plaintiff.

Cothran, Dean & Cothran, for defendant.

JUDGE'S CHARGE.

SMITH, District Judge, charging jury: Mr. Foreman and Gentlemen of the Jury: I instruct you in this case that this statute which we ordinarily call "Hours of service act" is a remedial statute of the highest character. It was passed for the protection both of the employee and of the public. The lawmaking power of this country has concluded that the human machine, the employee of a railroad, under the stress and strain of railway service in the operation of a railroad train, should not be subjected to more than sixteen consecutive hours of that service. After that period, the theory of the statute is that the human machine becomes fagged and is not properly capable of providing for the safety of the train, the safety of the public, the safety of itself; the human faculties become weary and fagged, and he must have rest in order to be restored to the normal condition of capability, so they prohibit the employee being subjected to that strain for more than sixteen hours' continuous employment.

As I said before, it is for the protection of the public who are travelers upon passenger trains and whom it may be desired to protect from casualties and accidents and destruction through the enfeebled energies of a man who has been on service for over sixteen hours. It is intended for the protection of the public itself, and intended. for the protection of the human employee; but the operation of railroads must be in the hands of skilled, responsible people, and necessarily, inasmuch as they are to be guided by the principle of the safety of the public first, they can not be controlled as to what are proper delays which may keep a certain train back, or the proper methods of providing for accidents that happen on their roads in the providing and changing of trains to meet the public accommodation. The persons in charge of the railway administration are the persons really in charge of the operation of a railroad who are responsible, and they are held to a heavy responsi

bility, and therefore they must be given corresponding powers, but it must bewhatever action they take must becompatible with the law that the

human machine must not be worked more than sixteen hours consecutively, except in exceptional instances.

A passenger train or a freight train might meet an unavoidable accident at a way station. If it is possible to avoid it, the reason of the rule is not to delay and hold up a train of passengers, and if it is a freight train you can not hold up a freight train if at the point of the accident it could be held to the eight hours' rest that is required by the statute only at the risk of danger to other trains; therefore the statute makes certain provisions regulating in such cases the enforcement of the statute, and I construe that to mean that the provisions of the act, so far as requiring sixteen consecutive hours of labor, mean only that the train may be operated after that limit until a suitable stopping place can be reached, and it is the railroad's duty to have suitable stopping places where rest can be had for its employees at proper places along its route, proportionate to the exigencies of the business.

Now, that is my instruction to you; I do not think that there has been proven in this case that the brake beam might not have been due to unavoidable accident. I think the facts show that there was an inspection at the last place the train left; it is not shown that it was an improper inspection, and the conductor of this train left the place under circumstances which would lead him to presume that the train and the cars were in good operating condition. But there may have been unavoidable accidents elsewhere which caused what is called a detouring of other trains from a different route to this, so as to load this line of transportation with more than the usual amount of travel; yet the testimony shows that was not unexpected, for the casualties which are alleged to have caused the detouring of trains, with the exception of a single train on what is